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Virtual abolition of PIP, DLA and ESA appeal tribunals as we know them

The government is poised to bring an end to the shaming success rates at benefits appeals, but they will do so by nobbling the appeals system rather than by improving decision making.

In the future many more appeals will be “on the papers” where success rates are drastically lower, hearings that do take place will be on the phone or via Skype type links and most appeals will be decided by a solicitor (often retired) sitting alone, without a medical wing member or a disability wing member.

Shaming appeal success rates
The introduction of the mandatory reconsideration before appeal system was intended to bring appeal success rates for claimants crashing down to earth. In fact, whilst it has drastically reduced the number of claimants who lodge an appeal, success rates remain sky high.

Only this month the Scottish government, responding to the second independent review of PIP, argued:

“It is absolutely staggering that 65% of people who dispute their PIP award are successful in their appeal of that decision.

“Not only does that highlight a deeply flawed system, but it shows very clearly the number of people subjected to a highly stressful, often prolonged, process to get the support they need and are entitled to.”

So, a new online system of appeals brings the twin advantages for the government that it will hugely cut costs as well as cutting success rates.

Propose changes
The plan is to go almost entirely digital for many areas of the justice system, with Social Security and Child Support tribunals being “one of the first services to be moved entirely online, with an end-to-end digital process that will be faster and easier to use for people that use it.”

The proposed changes – which are currently open to consultation but are virtually certain to be adopted – include

  • More use of case officers for routine tasks
  • More decisions made “on the papers”
  • More virtual hearings
  • More cases resolved out of court
  • Simplifying panel composition

There’s more details on each of these aspects below.

More use of case officers for routine tasks
According to the consultation document:

“Judges spend too much of their time dealing with uncontroversial, routine or straightforward matters which could just as effectively be dealt with by court staff under judicial authorisation. Where it is appropriate, specially trained staff will be able to carry out some of this work to help justice move faster.”

This could mean clerks deciding whether your appeal is in time, for example, or whether your appeal will be online, in person or “on the papers”, see below.

More decisions made “on the papers”
The government’s aim is that:

“Where a case is relatively straightforward or routine, representations will be made online in writing for a judge to consider outside of a traditional court room, without the need for a physical hearing, meaning a more convenient experience for everyone involved.”

A “more convenient experience” for the DWP certainly who have vast resources and huge experience in producing written submissions.

But claimants with little or no experience of the legal system are likely to be at a huge disadvantage where appeals are on the papers only. Here at Benefits and Work, our advice has always been for claimants to opt to appear in person before a tribunal, because the success rate for face-to-face hearings is so much higher than for paper hearings.

More virtual hearings
Even if you manage to avoid a paper hearing, the chances of having your appeal in the same room as the tribunal judge are very slim indeed.

“Where a judge needs to listen to the parties make their arguments, it will be possible in many cases to hold the hearings over telephone or video conference, without the need for the parties to travel to a court building. There will still be an important place for physical court hearings for criminal trials and other serious or complex cases, but where they are appropriate, virtual hearings offer an easy and convenient alternative for everybody.”

The fact that physical court hearings will be reserved for ‘criminal trials and other serious or complex cases’ suggests that very few PIP, DLA or ESA first-tier tribunals will take place other than virtually.

For some claimants, removing the stress and pain involved in travelling to a hearing will be an enormous advantage. But for others, the sheer strangeness of an online exchange – and all the technical problems it may involve – will make it very hard for them to give detailed and persuasive evidence.

More cases resolved out of court
Many claimants may not even get as far as a hearing, online or on the papers, even after lodging an appeal.

“In appropriate cases, we will encourage parties to settle their disputes themselves, without the intervention of the courts.”

The real fear here is that the DWP will effectively be able to bully claimants into accepting a lower award than they believe they are entitled to in order to avoid the risk and emotional trauma of an appeal.

For example, it may become entirely legitimate for the DWP to tell a claimant who has received no award of PIP that, if they will accept standard rate daily living, the DWP will make an award. But if they continue to argue for enhanced rate the DWP will force them to appeal and do their best to ensure that no award at all is made.

This sort of thing already goes on, but to make it a legitimate method of settling disputes will mean it happens a great deal more often.

Simplifying panel composition
The government wants to get rid of the vast majority of wing members who currently sit on PIP, DLA and ESA tribunals, arguing that:

“As we streamline the tribunals system, we need to be more tailored and flexible in the way that non legal members are used. Panel composition will remain a matter for the Senior President of Tribunals (SPT), but we want to move away from a blanket approach of using non-legal members regardless of whether their specialist expertise and knowledge is relevant or required. Instead, they should only be part of the panel where their presence is relevant to the case . . . In the First-tier Tribunal (Social Security and Child Support), for example, many cases must be heard by a judge, a medical member and a member with experience of providing or receiving care for disability, regardless of the circumstances of the case in question.”

What this means in practice is that most appeals will be heard by retired solicitors sitting alone, with no-one with specialist medical knowledge, or specialist knowledge of disability issues more generally to assist them. It is unlikely to lead to a rise in the success rates for claimants at benefits appeals.

Consultation
The whole plan is open to consultation until 27 October 2016. However, judging by other recent consultations, the outcome – regardless of the evidence submitted – is a foregone conclusion.

You can read more about the plans and give your views on the Justice website.

Comments  

+1 #12 Jim Allison 2016-09-30 18:15
Judges in the Legal System

Judges who sit on First-tier Tribunals are really not judges in the true
sense of the word. When tribunals were amalgamated with the Ministry of Justice, to to form Her Majesty's Courts and Tribunals Service (HMCTS), Chairman were made Tribunal Judges who only sit to hear benefits appeals. In England and Wales judges are appointed from among the ranks of legal professionals with significant career experience. See http://www.chambersstudent.co.uk/where-to-start/newsletter/becoming-a-judge

Speaking as a former Tribunal Disability Member, the present system for DLA/PIP has to have 3 Members, Tribunal Judge (Formerly called Chairman) They can only use the title Tribunal Judge whilst sitting) on a tribunal, Medical Member, usually a GP and a Disability Member (someone who is disabled themselves, or has a good knowledge of social security law. All members are equal and the Tribunal Judge does not have any priority. Usually a tribunal will make a unanimous decision,
but it's not uncommon for a 2-1 decision. The Medical Member & the Disability Member can vote to award benefit. It follows that 2 members can make a decision with one member abstaining, the abstaining member has to give reasons for their decision,which has to be recorded in the Tribunal files.

I prefer this system in social security tribunals rather than have just a Tribunal Judge often retired solicitors with little knowledge of social security law.
+2 #11 Mutley 2016-09-30 11:22
This is quite appalling, when you consider that the difference between a hearing in front of a judge and a written application, is the fact that a judge can see the claimant and ask questions.

The majority of claimants get tied up with the red tape and quite obviously hostile statements made by DWP staff and do not know how to deal with this in a written form.

A lot get very emotional when writing out the appeals, which although is just a reflection of their own frustration at an unjust system, does not help when it comes to someone reading a claim.

This, when the claimant is faced off with a DWP employee who knows the law (or think they do) and knows how to word an appeal in the form expected by the legal profession, is why a lot of written claims fail. It is not down to the claimants state of well being, but down to their level of education and knowledge of the legal profession

A face to face with a Judge, who in my experience is more compassionate than DWP staff, is far more preferential than just the written word.

I am not sure if this is actually legal, given that the DWP would be discriminating against a group of people.
+1 #10 Jim Allison 2016-09-29 17:38
Quoting Crazydiamond:
Quote:
“In appropriate cases, we will encourage parties to settle their disputes themselves, without the intervention of the courts.”

The real fear here is that the DWP will effectively be able to bully claimants into accepting a lower award than they believe they are entitled to in order to avoid the risk and emotional trauma of an appeal.


Once a claim has entered the 'dispute' stage whether it be mandatory reconsideration or an appeal, the DWP become a party to the proceedings. As such, they should NEVER instruct a claimant to accept an award which is less than they are seeking on review (neutral word), nor should they discourage a claimant from making an appeal, or give any indication as to the likely outcome of an appeal.

In the latter situation it deprives a claimant/appellant of their statutory and civil rights, and if it is proven that the DWP were found to be interfering with the appeals procedure, it could also possibly be a contempt of court.
I totally agree with Crazydiamond's comments. Under common law, and currently the Human Rights Acts which we all know the Tories have plans to abolish. We still have rights under Universal Declaration of Human Rights passed by the United Nations see http://www.un.org/en/universal-declaration-human-rights/

If this evil government carries on we are on the road to totalitarianism,

1. a system of highly centralized government in which one political party or group takes control and grants neither recognition nor tolerance to other political groups.

2. autocracy in one of its several varieties
.
3. the character or traits of an autocratic or authoritarian individual, party, government, for example Hitler, Mussolini and other dictators
+1 #9 MarkW 2016-09-29 11:04
Quoting Eliza1091:
So that's it then -- the end of the road. We hit a brick wall. With no right of appeal they can issue whatever decisions they like. Dear God.


I think you are right. I get so anxious before I even get a letter - it's enough knowing it must come one day - that I am thinking seriously of giving it all up.
Yes, I know life will be difficult, if not virtually impossible, but for my own sanity I can not cope when the DWP control my life!
They control my mind having got right inside, & Life is pretty awful.
Just have to tell them where they can go.
+2 #8 vision 2016-09-29 10:22
Yet more "Moving the goalposts" to suit their aims. Devious
+4 #7 tintack 2016-09-28 01:35
Of course, if the DWP replaced the WCA with a test based on actual medical expertise, the right decision would be reached first time in most cases, there would be far fewer appeals, and therefore the cost of appeals would plummet. It would also be far less stressful for claimants, who would get the support they need.

But their response to losing so many appeals is not to draw the logical conclusion - that the assessments must be drastically flawed - but to undermine the appeal system. This means that they wish to effectively allow the DWP to make lousy decisions with virtual impunity. The fact that this will save little if any money is neither here nor there.

This is ideological, and another attempt to dismantle the benefits system. As long as corporate charlatans trouser vast sums of public cash and the poor are left to rot in order to fund tax cuts for the already wealthy, all's well in Toryland. And with a press dominated by the rabid right you can bet the public will be fooled into lapping it all up as they're told it's all about "standing up for hardworking people".

We can only hope that their slim majority stops them getting these measures through. These people are fascists, pure and simple. They want power without accountability. The DWP is a rogue department and completely out of control. It needs to be abolished entirely and replaced with something that doesn't view poor people as a problem to be got rid of by any means necessary, including removing all means of support so people starve.

If Charles Dickens could see what's happening he would surely shake his head in disbelief as we head back to the worst excesses of the Victorian era.
+5 #6 mayflower 2016-09-27 22:37
is this an issue the campaign group 38degrees might take up?
+2 #5 MarkW 2016-09-27 18:19
I had to use the appeals procedure and went before a doctor and judge. They took moments to make up their minds. I suspect they had actually read the evidence!
The DWP know they make bad decisions and can't take so many defeats.
The DWP pour on the pressure, the psychological attacks, and I for one will take little more of it!
+2 #4 denise 2016-09-27 16:40
Reading all this takes me back to when i went to the appeal courts and i was theatened if i did not drop that i wanted high care for my son and accept what they had given me i would loose the lot and when i said i dont buy what your Saying At the time it was medical services and they said they would get another private doctor to look at my son My son has had Schizophrenia for 19 years now Yes i can well believe they will do it their going back to old scool now.
+2 #3 Eliza1091 2016-09-27 16:38
Quoting Crazydiamond:
Quote:
“In appropriate cases, we will encourage parties to settle their disputes themselves, without the intervention of the courts.”

The real fear here is that the DWP will effectively be able to bully claimants into accepting a lower award than they believe they are entitled to in order to avoid the risk and emotional trauma of an appeal.



Once a claim has entered the 'dispute' stage whether it be mandatory reconsideration or an appeal, the DWP become a party to the proceedings. As such, they should NEVER instruct a claimant to accept an award which is less than they are seeking on review (neutral word), nor should they discourage a claimant from making an appeal, or give any indication as to the likely outcome of an appeal.

In the latter situation it deprives a claimant/appellant of their statutory and civil rights, and if it is proven that the DWP were found to be interfering with the appeals procedure, it could also possibly be a contempt of court.
So, you're saying we still have rights? Even if only a few shreds of them left? Oh well, onward and upward. Needs a thumping campaign to oppose effective removal of right to appeal
+5 #2 Crazydiamond 2016-09-27 13:21
Quote:
“In appropriate cases, we will encourage parties to settle their disputes themselves, without the intervention of the courts.”

The real fear here is that the DWP will effectively be able to bully claimants into accepting a lower award than they believe they are entitled to in order to avoid the risk and emotional trauma of an appeal.
Once a claim has entered the 'dispute' stage whether it be mandatory reconsideration or an appeal, the DWP become a party to the proceedings. As such, they should NEVER instruct a claimant to accept an award which is less than they are seeking on review (neutral word), nor should they discourage a claimant from making an appeal, or give any indication as to the likely outcome of an appeal.

In the latter situation it deprives a claimant/appell ant of their statutory and civil rights, and if it is proven that the DWP were found to be interfering with the appeals procedure, it could also possibly be a contempt of court.
+8 #1 Eliza1091 2016-09-27 09:49
So that's it then -- the end of the road. We hit a brick wall. With no right of appeal they can issue whatever decisions they like. Dear God.

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